Sanjay Nihichalani vs State Of Chhattisgarh

This application under Section 438 of the Code of Criminal Procedure has been filed by the accused/applicant for grant of anticipatory bail in connection with Crime No.05/2023 registered at Police Station Dharsiwa, Raipur for the offence punishable under Section 420 of IPC.

Case of the prosecution, in brief, is that complainant Ajay Nihichalani son of late Idandas Nihichalani, lodged a written complaint on 02.01.2023 at Police Station Dharsiwa, Raipur alleging that his cousin (the present applicant) who is son of his uncle namely Kanhaiya Lal in a fraudulent manner got mutated his name in the property of his late grand father after his death by using forged signature and in connivance with concerned Tahsildar and clerks also obtained order dated 23.11.2015 in a revenue case. On the basis of aforesaid complaint, on the same day, FIR No.005/2023 was lodged.

Learned counsel for the applicant submits that the applicant is innocent and he has been falsely implicated in the crime in question. He further submits that as far as order dated 23.11.2015 is concerned, the said order is a judicial order and has been passed by learned Revenue Court, therefore, unless the said order is not set aside by the competent authority, the police cannot go beyond it and register an FIR by mentioning that the order has been passed in a forged manner. He further submit that other family members of the complainant have assailed the order dated 23.11.2015 before learned Sub Divisional Officer by filing a duly constituted appeal. He submits that the case is purely of a civil nature and as there is a civil dispute between the family members of the parties. Learned counsel further submit that there is a clear violation of principles laid down in Lalita Kumari Vs. Government of Uttar Pradesh, (2014) 2 SCC 1. He also draws attention of this Court to the application filed by the grand father of the applicant namely Nanankram Nihchalni filed before the Revenue Court and his statement recorded on 20.04.2015 before Additional Tehsildar, Dharsiwa. He submits that after completion of the proceedings, the final order was passed on 23.11.2015 in Case No.7-A/A-27/2015-16. Learned counsel further submit that from the perusal of entire proceeding before the Revenue Court and from the face of the complaint itself, no offence is attracted under Section 420 of IPC as the impugned order was passed in judicial proceeding. However, concerned officer of the police authority lodged an FIR, which is nothing but abuse of the process of law for creating pressure on the applicant and his family members. Therefore, the applicant may be released on anticipatory bail. He also submit that the applicant is ready to abide by all the terms and conditions imposed on him, if this Court inclines to grant anticipatory bail.

Per contra, learned State counsel and learned counsel for the complainant oppose the submission advanced by counsel for the applicant.

Heard learned counsel for the parties and also perused the documents annexed with the petition.

In a celebrated judgment passed by the Hon’ble Supreme Court rendered in the matter of Lalita Kumari Vs. Government of UP (Supra), it has been categorically held that as to in what type and in which cases preliminary inquiry is to be made. The relevant paragraph of the aforesaid judgement is reproduced hereunder:-

“120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.”

In the instant case, the allegation is made not only with regard to family dispute but the allegation is also made against the judicial order passed by the Revenue Authority that the said order has been obtained in a fraudulent manner. Further, from the perusal of the FIR, it is apparent that after filing of written complaint, on the same day itself the concerned Station House Officer reached to a conclusion that a cognizable offence is made out and forgery was committed by obtaining the order from the Revenue Court. The aforesaid act of the concerned Station House Officer is serious abuse of the process of law and in violation of the direction/observation made in Lalita Kumari Vs. Government of UP (Supra). Therefore, considering the aforesaid facts and circumstances of the case, this Court finds it appropriate to grant anticipatory bail to the applicant.

Accordingly, the application is allowed and it is directed that in the event of arrest of the applicant, on furnishing a personal bond in the sum of Rs.25,000/- with one surety for the like sum to the satisfaction of the concerned Court, he shall be released on bail, on the following conditions:-

(a) he shall make himself available for interrogation by a police officer as and when required,

(b) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such fact to the Court or to any police officer,

(c) he shall not act in any manner which will be prejudicial to fair and expeditious trial,

(d) he shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial,

(e) he shall not involve himself in any offence of similar nature in future.

However, a copy of this order be sent to the Director General of Police, Government of Chhattisgarh to examine the entire case, and if required, suitable directions to the concerned Station House Officer and other police officers may be issued.

Learned State counsel shall communicate this order to the Director General of Police, Government of Chhattisgarh, forthwith.